Strategies of Public UDAP Enforcement

55 Pages Posted: 29 Mar 2017 Last revised: 12 Apr 2017

Prentiss Cox

University of Minnesota Law School

Amy Widman

Northern Illinois University - College of Law

Mark Totten

Michigan State University College of Law

Date Written: March 30, 2017

Abstract

Laws protecting consumers from unfair and deceptive acts and practices – commonly called “UDAP” laws – have played a stunning role in recent years. As one example, state and federal enforcers plied these laws more than any other to hold individuals and companies accountable for the Great Recession, while chalking-up record payouts. And with the shift in national power, the spotlight shows no signs of dimming.

Given the outsized role these statutes play, critics have directed their sights on both the laws and the enforcers who wield them. Missing from this debate, however, is an account of the actual conduct of UDAP enforcement in America. How do public UDAP enforcers exercise their considerable discretion? This article examines every UDAP matter resolved by state and federal enforcers in 2014 and presents the initial results of the first comprehensive empirical study of public UDAP enforcement.

Across a range of attributes, public UDAP enforcement varies while also revealing clear patterns. We organize the data to show how enforcers employ distinct strategies. The two main federal enforcers adopt sharply different approaches, especially regarding targets and relief. The state enforcers divide into seven distinct strategies, distinguished not only by case variables, but also by case quantity and leadership in multi-enforcer actions. The picture that emerges should shape the policy and scholarly debate on public UDAP enforcement and help optimize the work of public enforcers.

Keywords: state attorneys general, UDAP, unfair and deceptive acts and practices, FTC, CFPB, consumer protection, public enforcement, empirical legal reserach

Suggested Citation

Cox, Prentiss and Widman, Amy and Totten, Mark, Strategies of Public UDAP Enforcement (March 30, 2017). Harvard Journal on Legislation, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2942406 or http://dx.doi.org/10.2139/ssrn.2942406

Prentiss Cox (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612 625 6810 (Phone)

Amy Widman

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Mark Totten

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

HOME PAGE: http://www.law.msu.edu/faculty_staff/profile.php?prof=603

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